McDaniels v. Reed

The opinion of the court was delivered by Hebard J.

The plaintiff claimed title to the premises described in his declaration by virtue of several mortgage deeds. No question has been raised, but what the action was well conceived as to the defendant Reed. The right to recover against the defendant Vail depends upon several questions. The first is, as to the point of time, in reference to thevproceedings, which is to be regarded as the commencement of the action. It seems, that, at the time the writ bears date, Vail was not in possession of any part of the premises, and had no title to any part of them. But before the service of the writ he had a deed of the premises, which was put on record, and he was claiming to have purchased the premises.

The plaintiff must have a right of action at the commencement of the suit, to entitle him to recover ; and upon this fact the question presents itself. If we were at liberty to indulge in conjectures in relation to the facts, which are not presented by the bill of exceptions, ' we should conclude, that, at the time the writ issued from the pro-thonotary, the name of Vail was not in it; but, while the writ was in the plaintiff’s hands, and before service, learning the fact, that Vail had become interested in the premises, his name was then inserted. If this is the true solution of the matter, and that fact had appeared from the exceptions, we should have no hesitation in saying, that the action was not misconceived as to him, whether we *679 hold the sueing out the writ to be the commencement of the suit, or the service of the writ; for the insertion of the defendant Vail’s name would be the time, when the writ, as to him, was in fact sued out.

For some purposes one time, and for others another, has been regarded as the commencement of the action. With reference to the statute of limitations, as in the case of Lamb v. Day, 8 Vt. 407 , the sueing out the writ has been regarded as the commencement of the suit; and for this purpose there is an apparent reason for fixing upon this as the time. It is by the plaintiff’s sleeping upon his rights for a determinate period, that his claim becomes barred. When he is moving, and doing what the law enables him to do, he is regarded as vigilant; and from such time no such presumption, as grows out of the statute of limitations, can reasonably attach. And this has no reference to maturing, or originating, a cause of action; but its effect is, to prevent one from being lost, that has for a long time been mature.

In other cases, when the fact is to determine whether the cause of action has become mature, — as in the- action of trover, when a demand is necessary, as evidence of a conversion, — or in the action of assumpsit, when, from the nature of the contract, a demand is essential to the right of recovery, — then the service of the writ is considered the commencement of the suit; as in the case of Hall et al. v. Peck et al., 10 Vt. 474 .

The practice of obtaining and issuing writs is such, that it woüld make it inconvenient to adopt a different rule. The attorney, or his clerk, fills up a writ, and gives it such a date, as suits his convenience. The defendant has no interest in the writ, until it is served, and is, before that time, in no way affected by it.

We therefore hold, that, in this case, the service of the writ was the commencement of the suit.

The next question arises upon the sufficiency of the defendant’s tender. By the bill of exceptions it appears that the defendants offered to prove, that, since the last term of the court, they had tendered to the plaintiff the sum due on two of the parcels of land described in the plaintiff’s writ and the plaintiff’s costs in this action. This testimony was excluded by the court; and the decision of the court is attempted to be sustained on two grounds. The first is, *680 that the plaintiff held another mortgage, of another piece of land, and that he was not bound to accept a part, without the whole.

The three mortgage deeds are of different dates, were given to different individuals, contain distinct parcels of land, and were given for the security of different debts. They would therefore seem to have no connection with each other, in any respect. They are as disconnected now, as they were, when first given. Each piece of land stands pledged, as before, for its own debt. And there is no doubt, that Reed is at liberty to redeem any one of these pieces, without the rest, if he chooses. That they are now in the same person makes no difference, as affecting the mortgagor. He was no party to that arrangement, by which the plaintiff has taken the assignment of those mortgages; and if they had all been given to the same individual, I do not conceive that any fair presumption could arise, that he intended to tack the subsequent mortgages, on to the first.

The next objection to the tender, and the evidence offered to prove it, is, that it was not made in season. This objection is founded on a misconceived notion of the legal effect of the tender, when offered. This action is ejectment. The tender is not made upon this action, and never could be made upon it. This action of ejectment is founded upon a mortgage; and the mortgage is only an incident to the debt; and the right to recover depends upon the fact, whether, at the time, there is a right of action upon the debt. The tender, therefore, was upon the debt; and if a legal tender was made upon the debt, the right of action was thereby suspended. If the right of action was suspended upon the debt, eo instanti it was suspended upon the mortgage. In an action of ejectment the plaintiff must have a right to recover, at the time he commences his action, and also at the time the judgment is rendered. If, after the commencement of the suit, the cause of action is by any means taken away, the plaintiff cannot recover, unless, by some means, he is again subrogated to it before judgment.

This tender was upon the debt, and might be made at any time, and one time, as well as another; and I see no objection to its having been made upon the trial; and the effect would have been the same. If it was made at any time, when the fact could be incorporated into the case, according to the usual mode of proceeding *681 on trial, it should have been received, and the tender would have its effect upon the debt as effectually, as if no action was pending upon the mortgage. This action upon the mortgage was all the time liable to be defeated by payment, not only before judgment, but' after.

The case of Edwards v. Fire Insurance Co., 21 Wend. 468 , which has been cited, goes farther than we are required to go in this case. It was there held that the tender was a discharge of the mortgage security. Whether that is so, or not, we hold that it was a suspension of the plaintiff’s right of action, at least, and that it could only be revived by a refusal, on the part of the defendants, to pay the money, when the plaintiff should signify a willingness to receive it. If the tender had been made on the day the money became due, we are inclined to think it would have the effect, given to it in that case, leaving the plaintiff to seek his remedy by a suit upon the indebtedness.

This disposes of a farther objection, — that there was no offer to show that the tender had been kept good and the money brought into court. The money need not be in court; it had nothing to do with the suit on trial. That action was for the recovery of land, not money. It was sufficient, if the defendants made a good tender and had the money ready to deliver to the plaintiff, when he should call for it.

The judgment is reversed.